Consent to State Legitimacy vs. Voluntary Obedience to Law?

Sorry to be so convoluted about the attributions and citations here, but Brandon Christensen over at Notes on Liberty drew my attention to this post by Arnold Kling on Yoram Hazony’s recent book on nationalism. I haven’t read Hazony’s book, but Kling’s post is meant to be an explication both for readers and interested non-readers alike. Here’s what he (Kling) says:

A long post, below the fold, offering my [Kling’s] charitable interpretation of what he [Hazony] is saying.

1. We have three options for government, two of which are very unpleasant: anarchy; repression; or legitimate government. With anarchy, people don’t obey the law. With repression, they obey with great reluctance and only if carefully watched. With legitimate government, they obey the law voluntarily.

2. Legitimate government means that people willingly make sacrifices, such as paying taxes and serving in the armed forces, to help sustain that government.

3. Contrary to the theories of John Locke and others, legitimacy does not come from consent. It first requires that people have a sense of commonality. This comes from common traditions and cultural focal points. These might include language, religion, holidays, moral codes, social narratives, etc. Without this sense of commonality, a state has to default to anarchy or repression.

I don’t understand this. Does anyone? Not a rhetorical question. Maybe it’s laid out in the book, but at face value, this set of claims makes no sense to me.

Claim (1) says that if we put aside anarchy or repression, we’re left with a legitimate government whose laws we obey “voluntarily.” That sounds to me as though the laws of a legitimate government are consented-to. If the government’s constitution is law, we would, presumably, consent to that, too.

Claim (2) says that if our government is legitimate, we “willingly” make sacrifices for it. That seems to imply that the sacrifices we make are consented-to along with the laws.

But claim (3) says that legitimacy does not come from consent. It seems to imply that consent is not a necessary condition for legitimacy, either. To avoid tangles about such jargon as “legitimacy,” “authority,” and the like: it says that no one need consent to a government before that government can justly or permissibly govern those it governs.

Maybe there’s no overt contradiction there, but the claims obviously do not cohere. If we obey the laws (including the constitution) by consent, and sacrifice for government by consent, why wouldn’t we consent to the legitimacy of government itself? What rationale is there for saying that people who consent to the constitution of a government don’t consent to the government itself? At a minimum, why wouldn’t we consent to the legitimacy of a government that does all and only legitimate things, or at least approximated doing so? Without an answer to such questions, it’s hard to see how claims (1)-(3) make even minimal sense.

Nothing in Kling’s explication of (3) addresses the relevant issue. You could reject Lockean consent theories and still endorse the claim that consent was a necessary condition for legitimacy. Rejection of Lockean consent isn’t rejection of consent. You could say that consent requires ethno-national “commonality” and still think that consent was a necessary condition for legitimacy: X’s being a necessary condition for Y doesn’t imply that Y can’t be a necessary condition for Z. So my bafflement remains.

Coming the other way around: People could have a sense of ethno-national “commonality” but fail to consent to the state. For instance: lots of Jews have lots of things in common without consenting to the legitimacy of the State of Israel. Is the legitimacy of the state then underwritten by ethno-national commonality sans consent? Does the state govern people simply because they belong to the same ethno-national group, whether they consent to it or not?

Questions in the same vicinity: a majority of the people on some territory might have a sense of commonality and, invoking that, consent to the state while leaving an ethnic or other minority outside of that perceived sense of ethno-national commonality or consenting cohort. Does the state then have the right to govern the minority community that fails to consent? Supposing they do, what did consent have to do with anything? How can it be said that a minority community that happens to live in the same territory as an ethno-national majority “willingly” obeys the laws of the state and “willingly” sacrifices to the state even if it actively refuses to consent to the state and actively rejects the functional equivalent of that state’s constitution?

This isn’t the first time I’ve read Hazony and been baffled, not just by what he says (or in this case, is understood to say) but by others’ reactions to it. I guess the first time was when Hazony brought Meir Kahane to my undergraduate institution, had Kahane defend the proposition that the Palestinians of the West Bank be driven out or killed in the name of “the virtue of nationalism“–and then defended him as the audience nodded in agreement and laughed at Kahane’s jokes. I’m disinclined to show such a person “charity” of any kind even thirty years after the fact, and don’t really see why anyone should. Cruel, I know. But in the world we currently inhabit, prudent.

(Apologies, couldn’t get the “Continue reading” tag to work on this post.)

What About Bob?

I teach a cross-listed course, Phil/Crim 380, called “Criminal Law: Theory and Practice,” intended as what I call a “citizen-philosopher’s” perspective on criminal law and criminal procedure. It complements Crim 220, Criminal Law, taught by Professor John Link, a former police chief. As one of my students so aptly put it, “Professor Link teaches criminal procedure from the perspective of the cop, but you teach it from the perspective of the criminal,” a statement apparently intended to suggest that she found my class the more practically relevant of the two.

One of the assignments I have my students do is “a short paper (around 3 pages) describing and analyzing an hour-long visit to a criminal court in session.” Alternatively,

Many law enforcement agencies and independent agencies put on informational events designed to engage in community outreach. In the past the Bergen County Prosecutors Office has done so, and the Independent Monitor of the Newark Police Department frequently does so. If you’d prefer, you can attend one of these events instead of visiting a criminal court session. But ask me before you attend one of these.

A student raised her hand in class today to do just that. “My dad is friends with someone at the Bergen County Prosecutors Office, so I was wondering if I could go to something there?” Sure, I said.  Continue reading

No More Tears: The (Elizabeth) Warren of Identity Politics

So Elizabeth Warren’s DNA test is outrageous identity politics, but “Birthright” tours to Israel aren’t. I guess this is because it’s socially-approved virtue signaling in this country to attack a fake Cherokee, but anti-Semitism to attack the fake descendents of King David. Or maybe because DNA tests for tribal membership are racist identity politics, but Zionist archaeology is a fitting riposte to the Nuremberg Laws.

Here’s a thought: if Elizabeth Warren is Cherokee, and the Cherokee are one of the Ten Tribes of Israel, doesn’t that mean she’s Jewish and has a right of return to Israel? If so, maybe she can go to the West Bank and re-enact the Trail of Tears from Andrew Jackson’s perspective. Wouldn’t that be payback? And wouldn’t the contradictions involved shut just about everyone up in this stupid controversy?

“Policing from a Cop’s Point of View”; “Defending Immigrant Rights”

For people in the New York/New Jersey metro area:

Policing from a Cop’s Point of View
Thursday, November 8, 2018, 1-2:15 pm
“Ray’s Place,” Main Auditorium, Education Commons Building
Felician University’s Rutherford campus
227 Montross Ave.
Rutherford, New Jersey 07070

We live in a climate of opinion that is highly critical of the police: charges of racism, brutality, procedural irregularity and the like abound. But what is the experience of working police officers? How do they experience what they deal with on the job, and what do they think about the criticisms commonly made of them?

We’ll hear answers to these and other questions from four local police officers: Louis Mignone, a former detective for the West Orange Police Department (now an adjunct in Felician’s Department of Criminal Justice); Julie Ann Zeigler, a sergeant for the Rutherford Police Department; John Russo, Chief of Police of the Rutherford Police Department; and John Link, former Chief of Police of the Clifton Police Department (and an adjunct in Felician’s Department of Criminal Justice). The event is free and open to the public.

For more information, go to this page, or contact Irfan Khawaja, khawajai at felician dot edu.

Continue reading

Character-Based Voting and the Policy of Truth

For the past six months or so, I’ve been working on a project on what I call “character-based voting” (CBV), construed as voting for a political candidate based on her traits of character, as contrasted with “policy-based voting” (PBV) which is voting for a political candidate based on the expected consequences of the candidate’s expected policies.

It’s a rough and in some contexts problematic distinction, but clear enough to work with. There’s a clear enough distinction to be drawn between voting for a candidate because you regard her as more honest than her rival, and voting for a candidate because you expect her to enact policies X1…Xn, which have expected consequences C1…Cn, which you regard as net favorable, but which you don’t expect her rival to enact. My modest claim is that CBV can in principle be justified, and has its place. Continue reading

Imagine: Living in a Socialist America (Run by Republican Aristocrats)

I met these Democratic candidates for Readington Town Committee over breakfast the other day, and asked them what differentiates them from the Republicans who dominate politics around town. Without blinking an eye, they said that as Democrats, they favor a pro-development, pro-business platform against the local Republican machine, which is running against development and against business in the name of “Open Space.”

Image result for elizabeth fiore denise esakof

According Esakoff and Fiore, thirty percent of Readington Township is already open space, large swatches of it off limits to most people, but the Republicans want more: because you can never have too much of a resource that lots of people are excluded from using.  Huge swatches of “preserved farmland” lie in Readington Township alone, acquired at 50-100% “State Cost” i.e., through purchases by the county or the municipality, or through purchase by State Agricultural Development Committee fees. Continue reading

The Obligation to Smile

I just taught a class on cat-calling in my ethics course, focused in part on this famous viral video on the subject just below. A number of issues came up about cat-calling as such, but for reasons that are obvious to anyone who’s seen the video, a secondary issue came up as well: whether anyone ever has an obligation to smile.

I had always assumed that the answer had to be “no”: you have no free-standing obligation to smile, and certainly no obligation to smile on command. Properly conceived, smiling is the epitome of a spontaneous expression of one’s inner states: you smile when you’re genuinely in a good mood. To fake a smile is to wreck it: you fake a smile when you want other people to think (or even pretend to think) that you’re in a smiley mood when you aren’t. But there’s no good reason to do that, and lots of good reasons to avoid it. Fake smiling distorts your relationship with others, and distorts your relationship with your own inner states. It demands that you literally present a face to the world that in some sense isn’t yours, then do your best to believe that it is.    Continue reading

Police Tailgating as Entrapment: A Comment and Query

I live a fair distance from work, so I spend a fair bit of time driving on interstate highways. Because I do, I have a fair opportunity to observe the rather unfair doings of the New Jersey State Police on our interstate highways. This is the kind of behavior I see just about every day:

And this is the kind of behavior I’ve seen more than once (albeit by local police, not by state troopers):

I once saw a Glen Ridge police officer tailgate and then crash into the car he was tailgating, in part because he was lighting a cigarette while doing so. Having crashed into the car in front of him (at a red light), he called in backup, surrounded the victim’s car, then aggressively interrogated her at the scene–presumably for the crime of his having crashed into her. (This despite the fact that liability for rear-end collisions is almost always pinned on the car in the rear.) I wish I’d recorded it, but I didn’t have a cellphone at the time.   Continue reading